Dixie Greyshound Lines, Inc. v. Matthews
| Decision Date | 23 November 1936 |
| Docket Number | 32273 |
| Court | Mississippi Supreme Court |
| Parties | DIXIE GREYSHOUND LINES, INC., v. MATTHEWS |
(In Banc.)
1 WITNESSES.
Privileged communication statute held not to prevent physical and X-ray examination of parts of plaintiff's body which were alleged to have been injured and which were voluntarily exhibited to jury for inspection and examination (Code 1930 sec. 1536)
2 DAMAGES.
Under doctrine of inviolability of person, parts of plaintiff's body alleged to have been injured cannot be examined except where such inviolability is waived.
3 DAMAGES.
In personal injury action, refusal to permit physical and X-ray examination of parts of plaintiff's body which had been exhibited to jury, and X-ray pictures of which had been produced before jury, held reversible error, since plaintiff waived privilege of inviolability of person by exhibiting herself to jury.
APPEAL from circuit court of Yazoo county, HON. J. P. ALEXANDER, Judge.
Suit by Marjorie Merle Matthews, a minor, by her next friend, against the Dixie Greyhound Lines, Incorporated. From a judgment for the plaintiff, the defendant appeals. Affirmed in part, reversed in part, and remanded.
Affirmed in part; reversed in part, and remanded.
Chandler, Shepherd, Owen & Heiskell, of Memphis, Tenn., and J. G. Holmes, of Yazoo City, for appellant.
Where a verdict is against the overwhelming weight of the evidence, the case should be reversed and a new trial granted.
Cox v. Tucker, 131 Miss. 378, 97 So. 721; Mobile & Ohio Railroad Co. v. Bennett, 127 Miss. 413, 90 So. 113; Columbus & G. Ry. Co. v. Buford, 150 Miss. 832, 116 So. 817; Shelton v. Underwood, 163 So. 828; Universal T. L. Co. v. Taylor, 164 So. 3.
Where the award of the jury is so excessive as to manifest that the jury was unduly influenced in arriving at its verdict, it is the duty of the court to grant a new trial. Where it is apparent to the court, that there has been a manifest miscarriage of justice, a new trial will be granted.
Chapman v. Powers, 150 Miss. 687, 116 So. 609.
Where a verdict of the jury is contrary to the overwhelming weight of the evidence, or so excessive as to show passion, prejudice or caprice, the judge of the trial court is charged with the duty of setting the verdict aside and granting a new trial.
Gulf, M. & N. R. Co. v. Jones, 155 Miss. 689, 125 So. 114; Aetna Ins. Co. v. Robinson, 131 Miss. 343, 94 So. 7, 95 So. 137; Mobile & O. R. R. Co. v. Bennett, 127 Miss. 413, 90 So. 113.
Where a witness is available to the plaintiff and not available to the defendant, and the plaintiff does not produce the witness, a presumption arises that the witness, if called, would testify against the contentions of the plaintiff.
Wigmore on Evidence, sec. 285; Anderson v. Cumberland Tel., etc., Co., 86; Miss. 341, 38 So. 786; Bunckley v. Jones, 79 Miss. 1, 29 So. 1000; Kirby v. Tallmadge, 160 U.S. 379, 40 L.Ed. 463; Choctaw v. Newton, 71 C. C. A. 655, 140 F. 225; Graves v. U.S. 150 U.S. 118, 37 L.Ed. 1021; Beard v. Williams, 161 So. 750; Brown v. Chi., etc., Ry. Co., 95 N.W. 153.
Where a document would naturally support the contentions of the plaintiff, and is not produced, a presumption arises that if produced, it would not support the plaintiff's cause, or, that it was not produced because it did not exist.
Wigmore on Evidence, sec. 291.
Silence when the assertion of another person would naturally call for a dissent if it were untrue, may be equivalent to an assent to the assertion.
If the plaintiff claims to have been seriously injured, and if she lived in a place where physicians were available to her, the fact that she was not treated by a physician raises a presumption that the injury was not serious.
Beard v. Williams, 161 So. 750.
The plaintiff may waive a privilege which is for her own benefit.
Sovereign Camp W. O. W. v. Farmer, 116 Miss. 626, 77 So. 655.
The plaintiff may waive the inviolability of her person; and if the plaintiff exhibits her injuries to the jury, she waives her immunity, and it is reversible error for the court to refuse a physical examination of the plaintiff upon the motion of the defendant.
Chicago & N. W. Ry. Co. v. Kendall, 167 F. 62, 93 C. C. A. 422; Rison v. Postal T. C. Co., 28 F.2d 788; Swenson v. City of Aurora, 196 Ill.App. 83; Lake Erie & W. R. Co. v. Griswold, 125 N.E. 783, 72 Ind.App. 265; Holton v. Janes, 183 P. 395, 25 N. M. 374; Pronskeviteh v. Chicago & A. Ry., 83 N.E. 545, 23 Ill. 136; Booth v. Andrus, 137 N.W. 884, 91. Neb. 810; Galveston H. & S. Ry. Co. v. Chojnacky, 163 S.W. 1011; Brown v Liveley, 11 S.W.2d 556; Pan Handle & S. F. Ry. v. Sedberry, 46 S.W.2d 719; Kenney v. Lagrone, 62 S.W.2d 600; Chicago, R. I. & P. Ry. v. Langston, 47 S.W. 1027; Haynes v. Town of Trenton, 27 S.W. 622.
Where the injuries are alleged to be permanent, and X-ray examination is necessary to reveal their nature, the plaintiff must submit to an X-ray examination after waiving personal immunity.
State ex rel. Carter v. Trial Judge, 64 Fla. 144, 59 So. 789; Gimenes v. Gr. A. & P. Tea Co., 259 N.Y.S. 597.
It is a denial to the defendant of its constitutional rights to render judgment against it without affording it a reasonable opportunity to present its evidence and show the true facts.
Art. 3, sec. 14, Constitution of Miss.; Fifth Amendment and Fourteenth Amendment, sec. 1, Constitution of U. S.; Saunders v. Shaw, 244 U.S. 317, 61 L.Ed. 1163; Hutchinson v. Hutchinson, 270 P. 484, 126 Ore. 519; Windsor v. McVeigh, 93 U.S. 277, 23 L.Ed. 916; Hovey v. Elliott, 167 U.S. 215, 42 L.Ed. 220; Sibley v. Sibley, 78 N.Y.S. 743; Y. & M. V. Ry. v. Wallace, 90 Miss. 609, 43 So. 469; D'Aquilla v. Anderson, 153 Miss. 549, 120 So. 434.
R. T. Hilton and Charles S. Cox, both of Jackson, and Barbour & Henry, of Yazoo City, for appellee.
That the award was not so grossly excessive as to indicate passion or prejudice is manifest. The learned trial judge saw the appearance of the child as described by the witnesses for plaintiff, the jury saw her, and the proof was uncontradicted that prior to her injury she was an absolutely healthy child.
This court has repeatedly held the verdict must not only be large, even more than the court would have awarded, but it must be grossly excessive before it will be called into question.
Public Service Com. v. Watts, 168 Miss. 235; Shelton v. Underwood, 163 So. 828; Oliver Bus Lines v. Skaggs, 164 So. 9; Gulf Coast Co. v. Diggs, 165 So. 292.
Appellant makes the point that the exhibition of plaintiff's injury before the jury constitutes a waiver by this eight-year-old minor of the right to object to the testimony of physicians, and contends that the court was in error in refusing to allow an examination by physicians in open court, or directing submission of the child to additional X-ray pictures.
Counsel attempts to differentiate the cases of Y. & M. V. R. R. Co. v. Mary F. Robinson, 107 Miss. 192, 65 So. 241, and Gentry v. Railroad, 109 Miss. 66, 67 So. 849. Both these cases, however, are conclusive authority against appellant's contention. In the Robinson case it is held that the court has no authority or power to compel a plaintiff to submit to an examination, and this is also the holding in the Gentry case.
Union Pacific Ry. Co. v. Botsford, 141 U.S. 250, 35 L.Ed. 734.
The mere exhibition of an injury to a jury empaneled for the purpose of determining liability and extent of damage cannot be construed as a waiver of the right to object to the testimony of physicians in open court. Even if the judge had sustained the motion and permitted the examination requested by appellant, physicians of their selection, or of the court's selection, could not have testified over the objection of plaintiff. This is because of our privilege communication statute, section 1536, Code of 1930.
Independently of the statute, section 1536, Code of 1930, giving plaintiff the right to object to the testimony of any and all physicians, the court, in the two cases, Y. & M. V. R. R. Co. v. Robinson, and Gentry v. Railroad, supra, held that the court was without power to force a plaintiff to submit to a physical examination.
In these and other cases the court has held that a plaintiff may object to the testimony of any physician who has examined him.
If the court compels the examination, it is not a waiver of the benefit of the privilege. The court cannot compel a waiver of the protection of the statute.
R. R. v. Messina, 109 Miss. 143, 67 So. 963; Newton Oil Mill v. Spencer, 116 Miss. 568, 77 So. 605; U. S. F. & G. Co. v. Hood, 124 Miss. 548, 87 So. 115; Davenport v. State, 143 Miss. 121, 108 So. 433; Jenkins v. State, 146 Miss. 339, 111 So. 433.
The appellant has greatly magnified the alleged error of the court's refusal to force the child to submit to further X-rays and physical examination by physicians. The only profert made was a scar on the hip, and if the appellant had seriously requested it, the three doctors would have been permitted to examine it. Such examination would have disclosed nothing whatever, as there was no claim that the scar incapacitated the child. It was offered solely as corroboration of the testimony that there was sufficient force in the admitted negligent collision of appellant's bus with the car in which the appellee was riding to injure her. There were several witnesses for appellant who testified the child was not injured at all and the scar was solely to contradict this testimony.
There was no showing nor--even a statement by appellant's counsel--that such an examination would prevent a miscarriage of justice, or was essential to the ends of justice. Indeed the three...
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